Etchison v. Mayor of Frederick

Briscoe, J., delivered the opinion of the Court-. By Chapter 560 of the Acts of 1908, the General Assembly of Maryland conferred upon the Mayor and Aldermen of Frederick City certain powers and authority as to the control of its streets and highways and among’ other things provided as follows, “to regulate the use of sidewalks for use of signs, sign-posts, awnings, posts, horse-troughs, telegraph posts, trolley poles, electric light poles-, telegraph wires, electric light wires, and for any and all other purposes, and to prohibit the erection of any posts, poles or wires and to compel the removal of any posts, poles or wires, in, over, or above, any street, sidewalk or highway.” ²⁸⁵ On the 1st day of August, 1913, the Mayor and Aldermen of Frederick in pursuance of the power thus conferred hy the Act of 1908, passed an ordinance prohibiting the erection and providing for the removal of all hitching posts, sign posts, awning poles and posts and poles of every description (except telegraph, telephone, electric light and trolley poles and ornamental lighting posts) on the pavements, within three feet of the curb lines, and prohibiting the tying of animals of the horse kind to any trees, tree boxes, telegraph, telephone, electric light and trolley polo and ornamental lighting posts, on Market street, between Clark Place and Fifth street, and on Patrick street between Court street and Middle alley, in Frederick City, Maryland, and providing a penalty for violation thereof. The ordinance is set out, in the record, marked .Plaintiff’s Exhibit Ho. 2, and provides in addition to a fine and imprisonment for its violation or failure to comply with its terms, that, if the owner of the promises in front of which such poles or posts may stand shall fail to comply with the ordinance within sixty days after notice from the City Engineer, 1 hey, the posts, shall be removed by that officer at the owner’s expenso. The plaintiff is the owner of a business building situate on Market street, in Frederick City, within the designated limits prescribed by the ordinance, and maintains an awning lmilt in, and fastened to the front wall of the building, and supported at the sidewalk hy three iron poles, about three inches in diameter, and about nine feet apart.

The awning is about seventeen feet above the sidewalk and is supported by these three iron posts, poles or uprights. On the 19th of August, 1913 the plaintiff received from flic City Engineer of Frederick City a notice to remove these posts or poles as provided by the ordinance, and the plaintiff hy this proceeding asks a Court of Equity by injunction to enjoin the defendants from removing the iron posts or uprights supporting the awnings, and from in any way enforcing the ordinance. ²⁸⁶ The ease was heard upon the bill of complaint, the defendants motion to dissolve the preliminary injunction, which had been previously issued and upon a demurrer to the bill. The defendants’ demurrer to the bill of complaint was sustained, and the plaintiff’s bill was dismissed by an order signed by a majority of the. Circuit Court for Frederick County dated on the 13th of December, 1913, and it is from this order an appeal has been taken.

It is objected, upon the part of the appellant: First, that the Mayor and Aldermen of Frederick City were not authorized by their charter to pass the ordinance in question, because the power to remove awning posts and poles was not specifically conferred by the Act of 1908. Second: That if they had the authority and power to do so, the ordinance is invalid because arbitrary, oppressive, unreasonable and discriminative; third, that the ordinance and its enforcement, would deprive the plaintiff and those similarly situated, of their property without due process of law, and would deprive them of the equal protection of the law. As to the first objection, we need only say, that we think the ordinance is entirely within the legislative grant, which authorizes the Mayor and Aldermen of Frederick City to regulate the use of awnings, and to compel the removal of any poles or posts on any of the streets of the city. The language of the Act of 1908, Chapter 560, it will be seen, is broad and comprehensive and provides in terms that the Mayor and Aldermen of Frederick, shall have power to provide by ordinance among other things, “to regulate the use of sidewalks, for use of signs, sign posts, awnings, posts * * * an(j f0!P any an¿ a]¡ QtFer purposes, and to prohibit the erection of any posts, poles or wires, and to compel the removal of any posts, poles or wires, in, over and above any street, sidewalk or highway.

It is difficult to see what words the ‘Legislature could have used that would have more explicity, and expressly con ²⁸⁷ ferred the power here in question upon the Mayor an<( Aldermen, then the language used in the Act itself. The power as conferred was a reasonable one, and was intended for the purpose of enabling the Mayor and Aider-men, to maintain and preserve the streets and highways of the city, in the character of streets in such condition as may he most suitable for the public use. Lake Roland R. R. Co. v. Balto., 77 Md. 380 . In Brauer v. Refrigerating Company, 99 Md. 367 , this Court said, the cases upon the subject agree that the fundamental right to the enjoyment of the streets is that of the general